The Judges Have Spoken

By
The Alagiri Immigration Law Firm
|August 08, 2018

In the past two weeks, the US courts have submitted several decisions regarding some of the Trump Administration's more polemic immigration policies, from family separation to long-term detention. Here are a few of the most important rulings, and how they're being carried out.

Trump v. California

In the beginning of April, the Trump Administration sued the state of California over its Sanctuary laws, which the Administration argued were obstructing efforts to enforce immigration policies. Attorney General Jeff Sessions argued that the Constitution gives the federal government pre-eminent power to regulate immigration, and that the state's laws were directly interfering with that power, and, therefore, should be considered illegal.

The two laws which were upheld in the court's decision limit the sharing of information with federal agents and require state inspections of detention facilities where immigrants are held, respectively. According to Mendez's seven-page decision, the first law "does not directly conflict" with U.S. law; while in regards to the second law, the judge wrote that he "found nothing in the federal statutes saying Congress did not intend for states to have oversight of detention facilities in their borders."

A third law that prohibits employers from allowing immigration officials on their property without warrants was not upheld, so court proceedings on that portion of the law will continue.

Mendez, a U.S. District Court Judge in Sacramento appointed by former President George W. Bush, said in a Reuter's interview that he was joining an “ever-growing chorus” of judges urging “elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bipartisan fashion toward drafting and passing legislation that addresses this critical political issue.” ----

Long Term Detention

After the public outrage due to the Administration's family separation policy, Trump and his team backpedaled, repealing their highly controversial policy. Instead, the Administration began looking for ways to detain families together at the border - a search which began with gaining the legal go-ahead for long-term detention of minor children.

The U.S. Department of Justice looked to modify the Flores Agreement, a settlement from 1997 that prohibits children from being held in detention for longer than 20 days. The government claimed that long-term detainment would be the only viable option to avoid separating families in cases where parents are detained when seeking to entering the country.

According to Gee's scathing ruling, the government's argument was “dubious” and “unconvincing.” Gee also called it “a cynical attempt” to shift immigration policy making to the courts in the wake of “over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.” She rejected their request to modify the Flores Agreement.

The Trump administration has said they will fight the ruling, with the hopes that the Supreme Court will permit holding families in immigration detention centers indefinitely. According to a statement by Department of Homeland Security spokesperson Katie Waldman, the government claimed that Gee’s ruling “handicaps our ability to detain and promptly remove unaccompanied alien children and family units,” instead encouraging “catch and release.”

Unsettlingly, one Department of Justice lawyer also said that the government interprets the ruling as the judges giving parents two options if they wish to forgo voluntary deportation and pursue their immigration or asylum claim: they can either 1) choose to “remain detained together” for longer than 20 days, voluntarily relinquishing their Flores rights; or 2) decide to “release the child” and separate the family while the parent(s) remain in detention while their claim is processed.

Of the 57 eligible children under the age of five, it was reported that all but those whose parents had been deported or have criminal records made it back to their families one day after the deadline.

There are still many, however, who haven't.

On July 17th, CNN reported that the government "hasn't been able to find the parents of 71 children who were likely separated from their families." Jonathan White, Health and Human Services Assistant Secretary for Preparedness and Response told a federal judge that "of the 2,551 kids in federal custody believed to be separated, officials have confirmed matches with 2,480 parents."

With the final deadline for reunification approaching, the American Civil Liberties Union (ACLU) filed an emergency motion due to "the persistent and increasing rumors that mass deportations may be carried out imminently and immediately upon reunification." In response to this motion, Judge Sabraw has "ordered the government to temporarily halt the deportations of reunited families."

The court also required that the government give the ACLU twelve hour notice prior to reunification - presumably so the ACLU can have time to get a lawyer to meet with the family. The ACLU requested that the notification also include information about which families are earmarked for deportation.

According to the motion, any deportation should allow parents time to confer with their children and make an informed decision, especially now that the Trump Administration has changed the criteria for asylum seekers. Under the Administration’s new policy, "asylum seekers claiming a fear of domestic violence or non-governmental gang violence in their home countries will likely be immediately rejected."

In response, the government claimed that they will not have enough space in detention facilities if they cannot deport reunited families for a week.

Sabraw was unsympathetic to the government's complaints. According to the Judge, his decision to temporarily bar deportations should not be "unhinging reunifications underway."

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